Opinion
CASE NO. 1180 CRD-3-91-2
JUNE 29, 1992
The claimant was represented by David Pinciaro, Esq., Toro Pinciaro.
The respondents were represented by David Kelly, Esq. and Jeremy Booty, Esq., both of Montstream May.
This Petition for Review from the February 13, 1991 Finding and Denial of the Commissioner for the Third District was decided on the basis of papers submitted for the January 24, 1992 hearing before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo dos Santos.
OPINION
Respondents' appeal contests the commissioner's conclusion that claimant's right shoulder injury as well as his back injury arose in and out of the course of employment on February 8 and February 9, 1990 respectively. They also contend that claimant was no longer totally disabled as of February 13, 1991, the date of the Third District Finding and Award which is the subject of this appeal.
Part of their argument is that the formal hearing held in the Third District January 22, 1991 should have been limited to the issue of respondents' Form 36, the document respondents filed in an attempt to end temporary total disability payments. At the beginning of that hearing the following exchange took place between the attorneys for the parties and the commissioner:
Respondents' counsel stated:
I don't even know if we're under an obligation to continue paying benefits. We've submitted a voluntary agreement to the Claimant that has not been executed. There's no voluntary agreement to my knowledge in this file, so I don't understand what obligation we are under to continue payments. We sought to have the Form 36's approved and every one of them has not been approved. We'd like to get a formal adjudication on that. That's how I perceive the issues today.
However, counsel for the claimant then stated:
Commissioner, my understanding of the issues today was the question as far liability of the insurer for my client's injuries to his right shoulder and to his neck. I may be mistaken, but that is the impression I was under. I may be mistaken, but that was my impression of the hearing.
The Form 43 filed which disputed the insurer's liability as to the neck and the right shoulder, and the notice of the formal hearing today lists the injuries of the neck and right shoulder that are at issue today.
The trial commissioner then stated:
Well, we had a hearing here in September. There was a Form 36 discussed at that time, it was not approved. A request was made at that time to schedule it for a short formal hearing on the Form 36 issue. The 36 was based on medical treatment.
Has been anything been done since that time as far as medical reports or anything? (TR, January 22, 1991, 3-4).
At that hearing the respondents made no protest when claimant's attorney declared that the shoulder injury was one of the subjects to be addressed. In fact the notice of the hearing had referred to the neck and the right shoulder. This gave respondents ample opportunity to present their evidence and arguments on that injury. See Daniels v. Angelo Monarca, Inc., 6 Conn. Workers' Comp. Rev. Op. 25, 519 CRD-3-86 (1988).
We also affirm the commissioner's ruling that the claimant's right shoulder and neck injury arose in and out of the course of employment. The claimant testified that he fell and hurt his neck and shoulder the night prior to injuring his back. See TR at 26-27. That testimony was elicited from the claimant by respondents' counsel during cross-examination. Respondents offered no witnesses to rebut the claimant's explanation of how the neck and shoulder injury was sustained. The commissioner's conclusion relied on the weight and credibility accorded the testimony of the claimant. Where, as hire, such a determination dependent upon such an assessment of credibility we will not disturb the conclusion of the trial commissioner. Rivera v. Guida's Dairy, 167 Conn. 524 (1975) (per curiam).
Our review function is limited to determining whether a trier's conclusion was contrary to law, based on unreasonable or impermissible factual inferences or without evidence. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Nor do we engage in a de novo review. Id. It seems that respondents would now like a second bite at the apple after first failing to convince the commissioner that their view was the correct one. Our Supreme Court long ago stated, "A party to a compensation case is not entitled to try his case piecemeal. . ." Kearns v. Torrington, 119 Conn. 522, 529 (1935).
We affirm the Third District and deny the appeal. Pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners Robin Waller and Angelo dos Santos concur.